A CRITICAL ANALYSIS OF SECTION 2(C)(I) OF THE CONTEMPT OF

COURTS ACT 1971

Background:

Contempt of court, a complex legal notion deeply embedded in the foundation of judicial
authority, is critical to preserving the dignity of court proceedings. India's laws against
contempt date back to the pre independence period. So, it won’t be wrong to say that this law
has its roots in England’s monarchic legal structure. The judicial system in England was a
mere instrument of power in the hands of the Monarch for multiple centuries. Under
monarchy the judicial power were delegated to the judiciary who acted the representative of
the king.

The Contempt of Court Act 1926 was the first legislation in India which deal explicitly with
Contempt disputes. Section 2 of the Act specifies the powers of High Courts to punish
Contempt of Court. According to it, "The High Court shall have and exercise the same
jurisdiction, powers, and authority, in accordance with the same procedure and practice, in
respect of contempt’s of Courts subordinate to it as it has and exercises in respect of
contempt’s of itself: Provided that the High Court shall not take cognizance of a contempt
alleged to have been committed in respect of a Court subordinate to it where such contempt
is an offence punishable under the Penal Code." Post independence the new legislation was
introduced i.e. Contempt of Courts Act 1952. A bill in the year 1960 was introduced in Indian
Parliament with intention to amend the existing law on Contempt of Court. Sanyal
Committee was formed to recheck the existing law and the proposed bill. The report was
presented by the committee in the year 1963. A lot of interaction happened post submission of
report with intellectuals and stakeholders. Later the bill was sent to the Joint Select
Committee. The committee was of opinion that there should be modification to provision
which was linked to limiting a period for going for contempt proceedings. The bill finally
became an act in the year 1971 and repealed the previous one. The Act characterized and
restrained the powers of certain courts in punishing contempt of courts and to regulate their
procedure in relation thereto, for keeping the administration of justice and upholding the
majesty of the judicial system.
The main aim of the article is to examine the constitutional validity of Section 2(c)(i)
[hereinafter referred to as “the impugned sub section”] the Contempt of Courts Act, 1971
and whether the provision and its use by the Honourable Courts today is violative of Articles
19.

Contempt Of Court

Contempt is defined as the state of being despised, humiliated, or dishonoured. In a similar

vein, it might be said that any misconduct, wrongdoing, or action that undermines the
credibility, authority, or integrity of the court constitutes contempt of court. These offences
could involve tampering with witnesses, disobeying orders, disrupting the proceedings,
hiding evidence, disobeying a court order, or, more recently, disparaging or tweeting about a
Supreme Court judge.

In Articles 129 and 215, respectively, the Constitution of India gives the Supreme Court and
the High Court the authority to punish for contempt. The Contempt of Courts Act, 1971,
[hereinafter referred to as “the Act”] complements these articles and is the primary legal
structure governing the offence of ‘contempt of court’ in the Indian landscape.

Classification of Contempt of Court:

Section 2 of the statute divides contempt into two kinds, Civil and Criminal contempt.

1. Civil Contempt – According to Section 2(b) of the Act - "Civil contempt means wilful
disobedience to any judgment, decree, direction, order, writ or other process of a court or
wilful breach of an undertaking given to a court." The level of seriousness is quite less in
comparison to criminal contempt. Mens rea forms an important component in Civil
Contempt.
2. Criminal Contempt – According to Section 2(b) of the Act - "the publication
(whether by words, spoken or written, or by signs, or by visible representations, or otherwise)
of any matter or the doing of any other act whatsoever which-
(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of,
any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any
judicial proceeding; or
 (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;"

Civil contempt refers to the wilful disobedience to any judgement, decree, or order of a court.
Whereas Criminal Contempt deals with any act which scandalises the court, prejudices any
judicial proceeding or interferes with the administration of justice.

In the case of DC Saxena v. Chief Justice of India 1 it was stated that this definition under
this impugned section not only guides suo motu proceedings allowed under Article 129 as
well as Article 215, but also guides the proceedings for contempt under the Act itself.

Vague and ambiguous nature of the impugned law:

The doctrine of legal jurisprudence makes any ambiguous legislation void when the
prohibitions are not specifically mentioned or defined.

In Kameshwar Prasad v. State of Bihar2 the Court hold forth that.

“the imposition of a blanket-ban on all demonstrations of whatever type, innocent as well as

otherwise, cannot be upheld.”

The validity of the rule in question was not upheld since it imposed a blanket ban on all
demonstrations of any type, whether innocent or otherwise. Similarly, this impugned
subsection is incapable of being interpreted objectively and has an enormously wide import.
The wide and vague ambit of this sub-section attracts punishment for publication merely on
the tendency of swaying the sentiments of the public against the court. Consequently, since
there is no scope of such parts of the offence to be severable, the whole offence is liable to be
struck down as ultra vires of the constitution which can be observed in Shreya Singhal v.
Union of India.3 The honourable high court in Baradakanta Mishra v. Registrar of Orissa
High Court 4 reiterated that conviction under this section must be handled with care and sparingly.

In Brahma Prakash Sharma v. State of Uttar Pradesh 5, the Constitutional Bench of the
Supreme Court has even if differentiated defamation of an individual judge and the offence of
contempt of court, but still the offence is yet applicable in instances where speech has been
directed not against the court but against an individual judge which can be observed in D.C.

1
(1996) 5 SCC 216.
2
[1962] Supp [3] SCR. 369.
3
(2013) 12 SCC 73
4
(1974) 1 SCC 374
5
[1954] S.C.R. 1169
Saxena v the Chief Justice of India. This helps to indicate and understand the overbroad as
well as vague language of the impugned sub-section, which grants courts at every level an
absolute power to control if needed supress, any and all criticism of the courts or judges.

Forbids speech in the absence of close and substantial harm:

The Constitution of India guarantees freedom of speech and expression to all citizens. It is
enshrined in Article 19(1)(a). Even Supreme Court of India in Maneka Gandhi v Union of
India6 had stated that the right to free speech and expression is essential to a functioning
democracy. The impugned sub-section restricts speech based on a “tendency” to scandalize or
lower the authority of the courts. In Ram Manohar Lohia v State of Bihar, [1966] 1 SCR
709,7 it was stated that this is constitutionally impermissible in the absence of some evidence
or connection, which alters the harm from a purely speculative one to a real, adjacent and
likely one.8 Further, dissenting and critical views are almost always likely to have such a
tendency, and the impugned sub-section has the effect of targeting speech of this kind as a
result.

In S. Rangaraian v. P. Jagjivan Ram the Honourable Supreme Court observed that; “The
anticipated danger should not be remote, conjectural or farfetched and should have proximate
and direct nexus with the expression, equivalent of a ‘spark in a powder keg.”

Hence by criminalizing the mere likelihood of tangible and material harm, the impugned sub-
section remains incapable of amounting to a reasonable restriction under Article 19(2).

A frightening effect:

A law is said to have a frightening and unsettling effect when it stifles legitimate speech
through excessively heavy laws. It is the unwanted prohibition of one’s free speech for the
fear of criminal sanction thereby having the devastating impact through self-censorship in a
free democracy.

The honourable Court in P N Duda v. P. Shiv Shankar that, “Judges have their accountability
to the society and to criticize a judge fairly albeit fiercely, is no crime but a necessary right.”
It was further observed that in a free marketplace of ideas, criticisms about the judicial
6
[1978] AIR [1978] SC 597
7
[1966] 1 SCR 709
8
Kameshwar Prasad v State of Bihar, [1959] AIR [1959] Pat 187; Shreya Singhal v Union of India, [2015] 5
SCC 1.
system or Judges should be welcomed, so long as such criticisms do not impair or hamper
the administration of justice.

However, the gap and vagueness of the words of the Act creates the uncertain threat of
criminal penalty and the resulting reality of its inconsistent application has the effect of
threatening dissenters and silencing genuine critics. As a result, the impugned sub-section is
consequently liable to be struck down on account of having a chilling effect on free speech
and expression as it stifles legitimate criticism and dissent to the detriment of the health of the
democracy.

Article 19- Logical Constraint and The Test of Proportionality:

Article 19(1)(a) provides the fundamental right of freedom of speech and expression limited
by reasonable restrictions imposed under Article 19(2). Although the right is not absolute, the
restrictions on it must be interpreted in the narrowest possible terms without casting a ‘wide
net’. The principle has evolved into a four-pronged test, as set down in Modern Dental
College and Research Centre v. State of Madhya Pradesh9 and affirmed in K.S. Puttaswamy
v. Union of India10:

a. Legitimate state aim

b. Existence of a rational nexus between such aim and the infringement of the right
c. That the infringement is the least restrictive measure available for the fulfilment of the
aim.
d. That a balance is struck between the extent of the restriction and the benefit that the
state seeks to achieve through such imposition.
While the aim of the impugned sub-section is to maintain public confidence in the courts,
however its uncertain application in a surplus of judgments has resulted in the opposite.

The sub-section is in contravention of rationality prong, as it fails the test of over breadth,
and the test of proximate harm resulting in the nonexistence of a rational nexus between the
already fulfilled aim and the infringed right.

Lastly, the impugned sub-section creates an untenable imbalance between the extent of the
restriction and the benefit that the State hopes to achieve by its imposition. By criminalizing
all criticism of the judiciary in sweeping terms, the limitation imposed by sub-section is
excessive, arbitrary and beyond what is required as it creates an imbalance.
9
[2016] 7 SCC 353
10
[2019] 1 SCC 1
Conclusion:

The essence of contempt of court was first incorporated in a legislative form through the
Constitution as per Art. 19(2) which provides for reasonable restrictions to curb contempt of
court, that disrespects the sanctity of the court. Thus, the legislation may not be violative of
the Constitution, as the legislature derives its validity from an express provision of the
Constitution itself. However, certain terms and phrases mentioned in the legislation has the
scope of being interpreted differently by different individuals, namely, the judges and the
parties involved therein. While the scope of the law has been interpreted by the Supreme
Court in various cases, in order to avoid further confusion, and conflicts.